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The Bin Laden Killing: Clarifying the Normative Framework(s) Governing the ‘War on Terror’?

Published on October 12, 2011        Author: 

Alon Margalit is Research Associate, Hotung Programme for Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies (SOAS), University of London. The author wishes to thank the editors of EJIL:Talk! for their helpful comments on an earlier draft.

It has been almost six months since Osama Bin Laden was killed in Pakistan by a US commando team.  It is now worth reviewing some of the legal questions arising from the incident as the heat of the moment has passed.  The May 2011 killing of Bin Laden marked an operational apex in the US ‘War on Terror’ and was favourably received by the overwhelming majority of States.  Shortly after the raid on a residential compound in Abbottabad was concluded, and before its exact details were disclosed, a statement by the President of the Security Council welcomed “the news on 1 May 2011 that Osama Bin Laden will never again be able to perpetrate such acts of terrorism” and urged all States to intensify their fight against terrorism in compliance with international law.  UN Secretary-General Ban Ki-moon declared that “justice has been done to such a mastermind of international terrorism”.

Similar statements were made by the EU which described the American operation as “a major achievement”.  Afghan President Karzai said Bin Laden “had paid for his actions”, and Saudi Arabia, the national State of Bin Laden, expressed the hope that his killing “would be a step toward supporting international efforts aimed at fighting terrorism“.  In Pakistan, where the operation took place presumably without its consent, President Zardari chose to stress the “satisfaction that the source of the greatest evil of the new millennium has been silenced, and his victims given justice.”

If the question of where this operation stood in terms of international law were to be answered according to States’ responses, the killing of Bin Laden apparently did not raise any legal concerns.  States hailed the American operation, did not question its legality, and thus signalled that they saw no violation of international law.  Within this almost universal favourable discourse, two independent experts of the UN Human Rights Council, the Special Rapporteurs on summary executions and on human rights and counter-terrorism, issued an exceptional statement.  They urged the US to disclose the facts supporting the use of deadly force against Bin Laden in order “to allow an assessment in terms of international human rights law standards”.  They emphasised that “the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment”.

This statement reflected – contrary to what seemed to be the consensus shared by States – the ‘legal buzz’ among international lawyers, triggered by the American operation and concerned with its legality: was the US allowed to plan and execute a shoot-to-kill operation, or were its troops obliged to try and capture Bin Laden and give him an opportunity to surrender before turning to lethal force?  A significant discussion on this question emerged immediately after the incident, debating the applicable law and whether the operation had adhered to the required standards.  Different, at times opposite, views were expressed including on EJIL:Talk!, here and here.

Read the rest of this entry…

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Can Gaddafi invoke self-defence against NATO; have NATO leaders committed the crime of aggression?

Published on July 6, 2011        Author: 

Dr Gleider I. Hernández  is lecturer in law at the University of Durham; Thomas R. Liefländer is a PhD candidate at the University of Cologne.

The recent events rapidly unfolding in Libya have raised a number of important questions for international lawyers. Among them, the precise delineation of the scope of Security Council authorisation to use force has given rise to intense discussions on this blog (see here, here, and here). To recall, the Security Council authorised the use of “all necessary means” in order to protect civilians and civilian-populated areas as regards the situation in Libya (in Security Council Resolution 1973). The discussion on this blog centred primarily on exactly how narrowly the relevant authorisations are to be construed, focussing in particular on how direct the relation must be between any given action and the protection of civilians or civilian-populated areas.

Against this background, we intend to use the Libya situation to analyse a different question, namely, the possible legal consequences of exceeding the scope of Security Council authorisation. We approach the issue from two related, but nevertheless distinct, angles. First, we consider whether, given Security Council authorisation to use “all necessary means” in Libya, it is still possible that international military actions exceed the scope of that authorisation, thus triggering Libya’s right to self-defence. This issue of overstepping authorisation takes on renewed urgency in the light of NATO’s admission that it has killed civilians in certain air raids (most notably the air raid of 22 June 2011, reported in the Guardian, where NATO was bombing checkpoints that were not military installations—see infra for further discussion) and France’s controversial decision to supply the Libyan rebels with arms (see this Guardian article, as well as Dapo Akande’s recent post).

Secondly, we will offer some brief thoughts on whether the leaders of the States acting under Security Council authorisation may be committing the crime of aggression, as defined for the purposes of the Rome Statute of the ICC, by overstepping their mandate. The second question is, of course, entirely hypothetical, considering that the ICC’s jurisdiction over the crime of aggression cannot be activated before 2017, and that the existence of such a crime under customary international law is in any event doubtful. Nevertheless, we believe this line of enquiry to be important, as a device to highlight the grave consequences that may result from an overly broad reading of a Security Council authorisation. Read the rest of this entry…

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Iraq Inquiry to Publish Submissions on International Law

Published on October 22, 2010        Author: 

The Chilcott Committee of Inquiry established by the UK government to consider the Iraq war has announced that it will publish the submissions it received analysing the legal arguments relied on by the UK for the use of force in Iraq. The announcement of its website reads as follows:

In June 2010, Sir John Chilcot issued an open invitation for International Lawyers to give their analysis of the legal arguments relied upon by the UK Government as the legal basis for military intervention in Iraq. The deadline for submissions was on 13 September 2010; around 35 submissions were received. Those submissions which addressed the issues raised in Sir John’s invitation will be published with the Inquiry report.

Some of the submissions to the inquiry, including a submission drafted by Marko and I and signed by others (see here), have already been published by the Guardian on its Legal Document Store.

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Submissions to the UK Iraq Inquiry on the Legality of the Iraq War (Updated)

Published on October 1, 2010        Author: 

As reported here, this summer the UK’s inquiry into the Iraq War (the Chilcott Inquiry) invited submissions analysing the arguments relied on by the UK government as the legal basis for the war. The deadline for making those submissions was extended from July to September 13. The inquiry reserved the right to publish submissions made to it. However, it is now nearly 3 weeks since that deadline passed and the Inquiry has not yet published any of the submissions. The other evidence given to the committee of inquiry is available on its website and one important contribution of the inquiry is the declassification and release of many documents which were previously confidential. As has been discussed on this blog before (see  here here, and here) many of those documents give fascinating insight into the process by which the government sought and received legal advice relating to the use of force. It would be anamalous if the inquiry fails to publish evidence received from international lawyers on this critical issue  and I suspect that they will be published in some form at some point.

An article in the Guardian newspaper yesterday states that over 30 submissions were received by the inquiry on the legal arguments. The article (“Blair’s case for Iraq invasion was self-serving, lawyers tell Chilcot inquiry”) begins by stating that:

“The Blair government undermined the UN, bowed to US political pressure and relied on self-serving arguments to justify its decision to invade Iraq, according to evidence to the Chilcot inquiry by international lawyers.

A key theme of the evidence, yet to be published, is that the government weakened the UN, damaging the country’s reputation in the process . . .”

The article quotes from submissions made by Ralph Zacklin (former UN Assistant-Secretary General for  Legal Affairs), by Philippe Sands and from submissions drafted by Marko Milanovic and I. The submission drafted by Marko and I was signed by 23 international lawyers from academia and private practice. The full text of that submission can be found below the fold. (UPDATE: You can find all three submissions referred to on the Guardian website here)

Given that the Inquiry made it clear that submissions were to be restricted to 3000 words we had to make choices as to the issues we wished to comment on. We decided not to attempt to revisit in full the against the use of force but did make the argument the argument put forward by the US and UK regarding the revival of previously given authorizations to use force undermines the UN collective security system. Our main focus, however, was on the arguments put forward by Lord Goldsmith (in his testimony to the committee) to justify the change in his legal advice. In our view, those arguments, even assuming that the UK’s revival argument was valid, UN Security Council Resolution 1441 would fail to satisfy that argument. In thinking that it did, Lord Goldsmith was moving from the UK’s revival argument to the US’ version of the argument which (as Lord Goldsmith himself accepted) was fundamentally different from the UK’s and which had been regarded even by the UK as an untenable legal position. Read the rest of this entry…

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UK’s Iraq Inquiry Invites Submissions on Legal Arguments Used by UK to Justify the War

Published on June 7, 2010        Author: 

As we have previously noted here, the inquiry established by the UK to examine the UK’s involvement in the Iraq War has spent some time taking evidence on the legal justification put forward by the UK for the invasion of Iraq in 2003, as well as on the manner in which legal advice on the issue was formulated and presented. [For EJIL:Talk coverage of events at the Inquiry, see here here here, and here]. The inquiry has now issued an invitation to public international lawyers to make submissions on the legal arguments relied on by the UK. The text of the inquiry’s invitation is as follows:

The legal basis for the military intervention in Iraq has been the subject of much comment.  The Inquiry has heard evidence on this point from a number of witnesses, including Lord Goldsmith the former Attorney General and Sir Michael Wood the former Foreign Office Legal Adviser.  Transcripts of such evidence can be found at: http://www.iraqinquiry.org.uk/.  In addition, a number of government documents relating to the formulation of the legal advice have been declassified and published on the Inquiry’s website.

The Inquiry is being advised on public international law by Dame Rosalyn Higgins QC.  In order further to inform the Committee’s considerations, the Inquiry would be pleased to receive from public international lawyers any legal analysis they may wish to offer of the legal arguments relied upon by the UK government as set out in: the Attorney General’s advice of 7 March 2003; his written answer to a question in the House of Lords on 17 March 2003; and the FCO Memorandum “Iraq: Legal Basis for the Use of Force” of the same date.

The inquiry does not wish to focus on grounds relied on by other states. Respondents are, therefore, invited to comment on the issues of law arising from the grounds on which the government relied for the legal basis for military action, as set out in the substantive elements of the evidence given to the Inquiry and published documents. That might include:

  • the legal effect of Operative Paragraphs 1, 4, 11 and 12 of UNSCR 1441;
  • the significance of the phrase “consider” in Operative Paragraph 12 of SCR 1441;
  • whether by virtue of UN Security Council Resolutions 678, 687 and 1441, the elements were in place for a properly authorised use of force;
  • the interpretation and effect of the statements made by the Permanent Members of the Security Council following the unanimous vote on UNSCR 1441;
  • the correct approach to the interpretation of Security Council Resolutions;
  • Lord Goldsmith’s evidence that the precedent was that a reasonable case was a sufficient lawful basis for taking military action.

I’m not quite sure what to make of this invitation. It has been my suspicion since the inquiry was set up that the committeee would consider in its final report the manner in which legal advice was formulated and presented in the lead up to the war but that it would not offer its own conclusions as to the legality of the war. Read the rest of this entry…

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Self-Defense and Non-State Actors: Indeterminacy and the Jus ad Bellum

Published on February 21, 2010        Author: 

Self-defense in response to armed attacks by non-state actors is undoubtedly one of the most interesting – and controversial – issues in modern international law. It is of great practical relevance, as for instance, with the ongoing use of drones for the targeted killings of suspected terrorists (a question I’ve discussed here), and has attracted a great deal of scholarly attention. Lindsay Moir has just published a book with Hart/Oxford that I’m sure will provide a strong contribution to the field. I would particularly like to draw our readers’ attention to the recent discussion in the EJIL provoked by Christian Tams’ excellent article on the use of force against terrorists, with responses by Federico Sperotto and Kimberley Trapp, and a rejoinder by Christian.

In this post, I would like to add a few thoughts on how the indeterminacy of state practice and opinio juris has caused an indeterminacy in the law, which I don’t think can be denied or removed by any legal analysis, no matter how exhaustive and competent.

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Drones and Targeted Killings: Can Self-Defense Preclude Their Wrongfulness?

Published on January 10, 2010        Author: 

Ken Anderson has an excellent, very interesting post regarding the US strategy of using drones for targeted killings of suspected terrorists in Pakistan and elsewhere (a topic we’ve addressed at the blog before). He argues that, as a matter of both law and policy, the current justification of the US government for its targeted killing practices is insufficient, because it relies far too much on IHL concepts like ‘combatant’ and IHL rules on targeting which are dependent on such concepts.

Such a justification is of course deeply problematic because IHL applies only in armed conflict, while the position taken by the Bush administration that the ‘war on terror’, or the US struggle again Al-Qaeda, is some sort of armed conflict unlimited in time and space to which IHL applies, is not very tenable. Unfortunately, the Obama administration has also used IHL in this way, if with some adjustments, while in Hamdan the US Supreme Court ruled that Common Article 3 was applicable and that the US is in some sort of global, amorphous non-international armed conflict with Al-Qaeda. (The Hamdan judgment is however quite unclear, and would bear other readings as well, such as that there is a non-international armed conflict between the US and Al-Qaeda in Afghanistan).

There has long been a consensus outside the US legal academia that IHL is inappropriate to regulate the fight against terrorism, outside specific situations where armed hostilities actually occur and have a certain level of intensity, as in Iraq or Afghanistan. For God’s sake, just how absurd would it be to look at the most recent Christmas/Underwear Bomber as some sort of ‘unlawful combatant’ in a global armed conflict?

Ken has thus valiantly argued on several occasions that the US government should desist from invoking IHL in this unconvincing manner, and that it should rely instead on its customary right of self-defense to justify the targeted killings of suspected terrorists:

That’s the legal authority that permits the US to strike at its enemies whether in a combat theater or not, in safe havens far away from any regular battlefield, and it is the traditional authority on which the US has always relied. And it is the authority on which the Obama administration is actually relying, if one looks to how it behaves. That is, if you asked US government lawyers twenty or twenty-five years ago on what basis the US would strike Al Qaeda targets in Somalia, the answer would likely be, customary law of self-defense — if a state is unable or unwilling to control its territory, the non-state actor safe havens are liable to attack.

Now, assuming that targeted killings of certain suspected terrorists are desirable in at least some cases as a matter of policy, is Ken’s self-defense argument for justifying them sufficiently persuasive? I respectfully submit that it’s not.

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Are the US Attacks in Pakistan an Armed Attack on Pakistan? A Rejoinder

Published on October 1, 2009        Author: 

I agree entirely with the first point that Professor Paust makes in his previous post , about the impossibility of imputing the non-state actor attacks to Pakistan due to incapacity. Certainly imputation doesn’t make sense on these facts as he outlines them. However, the second point he makes goes to the heart of my question.

Professor Paust asks, rhetorically, how attacking Al Qaeda in Yemen could be an attack on Yemen as such. But saying that selective targetings of non-state actors on the territory of another state is not an attack on that state ‘as such’ makes those last two words do an awful lot of work, work not everyone thinks they can do. Read the rest of this entry…

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Are US Attacks in Pakistan an Armed Attack on Pakistan? A Response to Timothy Waters

Published on September 30, 2009        Author: 

In a response to my previous post, Professor Timothy Waters, asks why it is that US attacks on non-State actors in Pakistan would not be acts of war against Pakistan. In this post, I attempt to answer that question. First, we can’t impute al Qaeda or Taliban attacks on our soldiers, which are continuous and well-known, to Pakistan merely because Pakistan is incapable of policing its territory.  Pakistan would have “state responsibility” (but not “imputation” or “attribution” [see Nicaragua v. U.S., 1986 I.C.J.]) – so Pakistan could be subject to sanctions not involving the use of armed force if Pakistan financed or even tolerated such attacks (according to the 1970 UN General Assembly Dec. Principles of  International Law, etc., and Nicaragua v. U.S., 1986 I.C.J.) unless Pakistan had effective control over al Qaeda or Taliban operations or later adopted them as its own (U.S. v. Iran, 1980 I.C.J.) — none of which has happened to my knowledge.  I suppose we agree on this.

Second, Professor Waters asks whether by merely using selective armed force in foreign state territory that is in response to ongoing armed attacks emanating from such territory engaged in or directed by non-state actors (triggering necessity as well as Article 51 self-defense) the U.S. has engaged in an armed attack on the state as such.  I understand from general patterns of practice and general patterns of opinio juris (obviously a few states and a few textwriters disagree) relevant to customary international law as well as a proper interpretation of Article 51 of the U.N. Charter that such selective responsive targetings are not an attack of the state as such and that such targetings do not trigger application of the laws of war applicable to an international armed conflict unless the non-state actor being targeted is a “belligerent” (under international law, triggering appllication of all of the customary laws of war vis a vis the armed conflict between the U.S. and such “belligerent” — perhaps still today, the Taliban [clearly the Taliban was at least a “belligerent” when the U.S. used armed force on Oct. 7, 2001 against the Taliban, and it had already been at least a “belligerent” during the war with the Northern Alliance before we went in]).  Read the rest of this entry…

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The United States’ Use of Drones in Pakistan

Published on September 29, 2009        Author: 

Editors Note: We feature below a discussion between a group of leading United States academics on the US’s targeting of Taliban and Al Qaeda targets  in Pakistan. Each of the discussants is a  leading writer on international law, and on the use of force in particular.  We are delighted to post this discussion on EJIL:Talk! As usual, readers are invited to post their comments below.

The discussion kicks off with remarks by Professor Jordan J. Paust , Mike and Teresa Baker Center Professor at the University of Houston Law Center. His initial remarks were originally prepared in response to a request from the media for clarification regarding certain issues arising from US use of drones in Pakistan. The other discussants are Professor Mary Ellen O’Connell (Notre Dame Law School); Professor Leila Sadat (Washington University School of Law, St. Louis); Professor Tony D’Amato (Northwestern University School of Law); Professor Geoffrey Corn (South Texas College of Law); Professor Ken Anderson (American University, Washington College of Law); and Professor Timothy Waters (Indiana University at Bloomington).

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